1. ' NADEEM AZHAR SIDDIQI, J.-- The applicant Sadaruddin Khuharo indicted as accused in Crime No.286 of 2005 of Police Station K.N. Shah, registered under sections 302, 504, 114 and 34, P.P.C., seeks bail.
2. ' Case of the prosecution is that on 25-12-2004 the complainant Haji Muhammad along with his sons Nazir Ahmed, Abdul Wahab and Mazhar Ali were grazing their goats in their agricultural land, when at 1-00 p.m., accused persons, namely, Shahnawaz armed with SBBL shotgun, Shabbir Ahmed having DBBL shotgun and Sadaruddin (the present applicant) with hatchet, all sons of Ahmed Khan Khuharo, emerged there and restricted the complainant party not to graze cattle in the land declaring that the said land belongs to them (accused). They exchanged harsh words with each other, whereupon, on the instigation of Sadaruddin, accused Shahnawaz and Shabbir Ahmed fired their weapons at Nazir Ahmed, son of complainant, which hit him at his left shoulder, left thigh and at right side near testicles. The accused persons thereafter escaped away. The motive behind the offence as set out in the F.I.R., is that accused persons Shahnawaz and others, who are nephews (brother's sons) of the complainant are having dispute with the complainant partt over the distribution of the land in question.
3. ' The police during investigation arrested the applicant on 12-1-2005 and on 14-1-2005 he was released on the basis of plea of alibi and statements of D.Ws. And placed in Column No.2 of the challan submitted before 1st Civil Judge and J.M., K.N. Shah, who, however, did not concur with the police opinion and ordered issuance of N.B.Ws. Against the applicant. The applicant was granted interim pre-arrest bail by the learned Sessions Judge, but the same could not be confirmed, resultantly he was remanded to jail.
4. ' Thereafter, the applicant moved for bail after arrest before the trial Court of learned 1st Additional Sessions Judge, Dadu, who vide order dated 13-2-2006 declined to release him on bail with following observations.
5. "It appears that the name of the applicant/accused is mentioned in the F.I.R. With specific role as he has instigated the other co-accused to kill the deceased Nazir Ahmed. He was armed with hatchet, on the instigation of applicant/accused co-. Accused Shah Nawaz and Shabir Ahmed fired at deceased from their guns upon deceased Nazeer Ahmed who died at the spot. As per prosecution case the present applicant/accused shared common intention in the commission of the offence. The. Statements of the P.Ws. Recorded under section 161, Cr.P.C. Are coupled with the contents of the F.I.R.Applicant/accused is involved in heinous offence under section 302, P.P.C.
6. Which comes within the prohibitory clause of section 497(1), Cr.P.C. Moreover prima facie sufficient material is available on record to connect the applicant/ accused in the present crime, hence applicant/accused is not entitled for grant of bail".
7. ' Heard arguments. The learned counsel appearing on behalf of the applicant contended that obviously the applicant, as per F.I.R., is alleged to be present at the place of incident being armed with hatchet, but the same has not been used by him in any manner and that the only allegation against him is that of instigating the co-accused. He further contended, that there is admitted enmity over the landed property between both the parties, who are closely related to each other and that all the persons nominated as accused in the F.I.R., are real brothers inter se and nephews of the complainant, therefore, false implication of the applicant in this case cannot be ruled out.
8. The learned counsel went on arguing that the police in the course of investigation had found the " applicant innocent on his plea of alibi that on the relevant day at the time of occurrence he was available at Khuharo Petrol Pump, where he was employed, which was supported by the other employees of said petrol pump. The learned counsel next contended that the case against the applicant in view of the role attributed to him in the F.I.R. Coupled with the admitted enmity calls for further enquiry as envisaged by subsection (2) of section 497, Cr.P.C. To support his above contentions, the learned counsel referred various reported cases, out of which few are cited below.
(1) Sher Khan v. The State (1980 SCM R 193);
(2) Ghulam Rasool v. The State (1982 SCM R 440);
(3) Muhammad Sadiq v. The State (1996 SCM R 1654);.
(4) Tariq Zia v. The State (2003 SCM R 958);
(5) Shafi Muhammad v. The State (1999 PCr.U 890) and
(6) Ali Shah v. The State (2002 PCr.LJ 707).
9. ' The learned Asstt. A.-G., appearing for the State did not oppose the bail plea of the applicant stating that the only role assigned to the applicant in the F.I.R. Is of instigation, there is enmity between the parties over the land, which is admitted in the F.I.R., and that in the investigation also he was found innocent by the police. On a question from the Court the learned Asstt. A.-G., after going through the police papers has confirmed that the police have recorded the statement of Ayaz Ali, Muhammad Ramzan and Muhammad Amin, who confirmed that on the date of incident the applicant was present at the petrol pump from 9-00 a.m. To 5-00 p.m. He further confirmed that no recovery was made from the applicant and from the place of incident only one empty cartridge of .12 bore was recovered.
10. ' I have heard the arguments of the learned counsel for the parties, perused the available material and have gone through the case-law cited at the bar.
11. From the perusal of the F.I.R. It appears that the parties have dispute over the distribution of land.
12. From the perusal of F.I.R. It also reveals that the applicant was armed with hatchet and the allegatipn against him is of instigating others to fire upon Nazeer Ahmed who got fire-arm injuries and died. No specific allegation of causing fire-arm injuries was attributed to the applicant. The presence of the applicant at the place of incident is yet to be established particularly in presence of the statements of Ayaz Ali, Muhammad Ramzan and Muhammad Amin. Since the dispute over the property is 'admitted, false implication of the applicant cannot be ruled out. Furthermore, mere presence of applicant and instigating others cannot be equated with the acts of other co-accused who caused fire-arm injuries to the deceased. Though the applicant was allegedly armed with hatchet but neither any allegation was made against him that he, caused any injury to the deceased nor any injury other than fire-arm injury was found on the body of the deceased. As far as the question whether applicant shared common intention to kill with those who caused death of deceased needs further enquiry for the reason that the Investigating Officer had initially absolved the applicant and placed him in Column No.2 of the challan. Furthermore, at bail stage deeper appreciation of evidence is neither desirable nor permissible and the material collected by the investigating agency has to be considered as its face value, which also includes 161, Cr.P.C.
13. Statements of the witnesses confirming the absence of the applicant from the place of incident.
14. Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt such accused shall be released on bail. In the case of Shahzaman and 2 others v. The State (PLD 1994 SC 65) the Hon'ble Supreme Court while dealing a question of cancellation of bail has held as under.
15. "Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C., but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. And acquitted or convicted for a lesser offence".
16. ' In another case reported as Haji Gul Khan v. Gul Daraz Khan (1995 SCM R 1765) his Lordship Saeeduz Zaman Siddiqi (as he then was) while dealing a case of cancellation of bail discussed the grant of bail on the ground of further enquiry and held as under:-- "It is, therefore, quite clear that a case would only fall within the scope of further inquiry under section 497(2), Cr.P.C. If the Court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence Punishable with death imprisonment for life or imprisonment for 10 years. In the absence of a finding to this effect, there will be no occasion for the Court to hold that the case is one of further inquiry. It may be mentioned here that in order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non-bailable offence or offence punishable with death life imprisonment or imprisonment for 10 years, the Court, if the case is still at the stage of investigation will make a tentative assessm ent of the allegations against agency to connect him with the offence. In case the trial has commenced, the Court taking cognizance of the case may, in addition to the material collected by the police, also take into consideration the evidence produced before it."
17. In this case also, keeping in view the statements under section 161, Cr.P.C., which are in favour of the applicant, possibility of acquittal of the applicant or conviction of a lesser punishment cannot be B ruled out.
18. ' Reverting to the case-law cited by the learned counsel for the applicant, it is suffice to say that the bail was granted in those cases on the premise that although the presence of the accused, and being armed was not disputed but since the accused had not caused any injury to the deceased, the bail was granted. In the case of Ghulam Rasool (supra) the bail was granted by the Hon'ble Supreme Court on the premise that name of Muhammad Ramzan had been shown in Column No.2 by the Investigating Officer and that sufficient weight has to be attached to the result of the investigation.
19. In view of the above discussion and following the rule laid down by the Hon'ble Supreme Court, I am satisfied that there are no reasonable grounds for believing that the applicant has committed a non-bailable offence falling under the prohibitory clause of section 497(1), Cr.P.C. And this is a fit case for further enquiry into the guilt of the applicant.
20. ' The bail application is allowed, the applicant be released on furnishing surety in the sum of Rs.200,000 and the P.R. Bond in the like amount to the satisfaction of the trial Court. In case the applicant misuses the concession of bail, the trial Court may take necessary action against the applicant and his surety.
21. ' The bail application is disposed of along with listed applications.